Tuesday, March 14, 2017
Ind. Decisions - Supreme Court issues 1 today
In Lt. Henry G.L. McCullough and Princess S.D. Naro-McCullough v. CitiMortgage, Inc., an 11-page, 5-0 opinion with pro se appellants, Justice Rucker writes:
Husband and wife appeal the grant of summary judgment that resulted in foreclosure of their family homestead. Concluding there are no genuine issues of material fact precluding summary disposition, we affirm the judgment of the trial court.
Lt. Henry G.L. McCullough and his wife Princess S.D. Naro-McCullough (“Homeowners”) are honorably discharged Viet Nam era military veterans against whom CitiMortgage, Inc. (“CitiMortgage”) obtained a judgment of foreclosure against their home of more than twenty years. Homeowners attempted to appeal, but as they had done before the trial court, the couple proceeded without legal representation. In doing so, they encountered difficulty navigating our appellate rules. Specifically, after filing a timely Notice of Appeal and Completion of Transcript, Homeowners tendered a woefully defective Appellant’s Brief and Appendix. The Clerk of Courts issued a letter of defect noting the numerous deficiencies in the parties’ brief. Homeowners responded with a motion asking the Court of Appeals to accept their non-conforming submissions. The Court of Appeals denied the motion. Thereafter CitiMortgage moved to dismiss the appeal on grounds that Homeowners failed to remedy the defects in their filings within the applicable time period. In response, Homeowners tendered, and moved for permission to file, a belated brief which was also defective. The Court of Appeals denied the motion and dismissed the attempted appeal with prejudice. And it acted well within its discretion in doing so. See, e.g., Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (noting, “[a]lthough we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal”). Here the violations were flagrant. Homeowners filed a petition to transfer which the Court initially denied. On reconsideration, deciding to address the merits, we vacated the order denying transfer and assumed jurisdiction over this appeal. Briefing on the merits proceeded in due course. * * *
We acknowledge Homeowners have proceeded before the trial court and on appeal without counsel. But, “[a]n appellant who proceeds pro se is held to the same established rules of procedure that a trained legal counsel is bound to follow and, therefore, must be prepared to accept the consequences of his or her action.” Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). * * *
Here, by obtaining a discharge in their Chapter 7 Bankruptcy, Homeowners protected themselves from personal liability on debts otherwise due all their creditors including CitiMortgage. Those debts can no longer be collected from Homeowners personally. But the mortgage lien survived and is enforceable as an in rem action. In this summary judgment proceeding, based upon its Complaint on Note and to Foreclose Mortgage, CitiMortgage did not seek an in personam judgment against Homeowners themselves, but rather an in rem judgment against their property for which there was an outstanding lien balance. This was altogether proper, and the trial court correctly granted summary judgment in favor of CitiMortgage.
Posted by Marcia Oddi on March 14, 2017 10:40 AM
Posted to Ind. Sup.Ct. Decisions